[Post No. 4] The Yoo/Chertoff/Ashcroft Memo? How Did the OLC Opinion Come to Be Issued from DOJ, Anyway?

Marty Lederman

I've now completed reading the March 14th OLC Opinion. As you might expect, there is a great deal within it that warrants very careful attention and analysis. There is nothing like it in our long legal history, as far as I know. After all, how often is it that a Department of Justice memo is issued that matter-of-factly argues that the Commander in Chief can authorize pouring corrosive acid on a detainee -- can authorize cutting out a tongue and poking out an eye -- nothwithstanding a statute that would prohibit that very conduct?

I think what I'll do is to publish a series of numbered posts, each centering on a discrete topic or portion of the memo. My reactions must, of course, be tentative and preliminary: I have not yet had the time to research most of these questions, or to give them the attention (some of them) might deserve. But I hope that by the end of the endeavor, we'll be able to see clearly just how radical and extraordinary this memo was.

Before I start in on the memo itself, however, I'll begin with a handful of posts about process and ramifications, rather than the specific substantive issues raised.

To begin with, two process questions.

First, as Jane Mayer and others have reported, this memo was written in the midst of a bitter battle within the Pentagon about whether the military should -- and could legally -- deviate from its decades-old practice of adhering to the Geneva Conventions and the Army Field Manual. The DOD General Counsel, Jim Haynes, pretermited the debate by informing the JAGs that OLC's view of the law was determinative -- that no matter how much they disagreed, OLC establishes the law for the Executive branch. OLC's view of the law was . . . the Yoo March 14th memo. And DOD's adoption of it had profound ramifications over the following 9-12 months, once the memo was largely incorporated in the Final "Working Group Report" that became the template for abuse in Iraq and Afghanistan.

Haynes was partially right in one sense. An OLC legal conclusion does establish the official views of the Executive branch unless overruled by the President, the Attorney General, or OLC itself (as Jack Goldsmith did in the last week of 2003). Therefore, it's a very solemn function for the Office to have. Actually, by law the function has been assigned to the Attorney General ever since the Judiciary Act of 1789; but in recent decades, the AG has delegated the opinion-rendering function to OLC.

On Friday, March 14th, 2003, that officer was Jay Bybee. [UPDATE: Post corrected to reflect fact that Jay Bybee remained AAG on the 13th.] Yet John Yoo issued the Opinion in his own name. John Yoo did not have the legal authority to issue this opinion . . .

. . . unless either Jay Bybee or John Ashcroft delegated Yoo the authority to issue such a momentous opinion without the supervision of the head of the office. So the obvious question is:

Did John Ashcroft or Jay Bybee sign off on this memo? Did either authorize Yoo to issue it without any review by the AAG or AG? If the answer to both questions is "no," then why did John Yoo think he was empowered to issue it? Why did Jim Haynes accept it as the official view of the Office of Legal Counsel? Didn't anyone check with [correction: Bybee] and/or Ashcroft? If not, why not?

This was, in my view, a serious abuse of authority and/or violation of protocol. And it demonstrates exactly why it is so important to abide by such procedural norms -- so that an unconfirmed, rogue deputy in OLC can't just go around offering the most important and ground-shifting legal advice in the Executive branch without that advice having been thoroughly scrubbed and critiqued by others who are more accountable and more seasoned. [Something similar appears to have occurred with respect to the landmark September 25, 2001 OLC Opinion on the President's unilateral power to take whatever military steps he thinks necessary to preemptively deter terrorist actions -- the memo that first argued that Congress is powerless to regulate the Commander in Chief. That, too, went out under Yoo's name, rather than under the name of the Acting AAG, who at the time was the much more careful and temperate (and superlative) career attorney, Dan Koffsky. How could that have happened?]

Which leads to the second remarkable process matter. From all that appears, John was not acting entirely on his own with respect to the March 14th Opinion. Section II of the memo is where much of the most astounding legal analysis appears. In that section, John concludes that the federal statutes against torture, assault, maiming, and stalking (i.e., threats) simply do not apply to the military in the conduct of war, by virtue of four "canons of construction": (i) that criminal statutes should not be construed to apply to the military during war; (ii) that they should not be construed to apply to the sovereign more broadly; (iii) that they are superseded as to the military by the Uniform Code of Military Justice; and (iv) of course, that if Congress did mean for them to apply in this context, it would be a violation of the Commander in Chief's prerogatives.

The memo's application of these canons to these statues (especially the torture statute) is, in my opinion, fairly outrageous, for reasons I'll discuss in further posts. And this section is the heart of the Opinion -- the belts and suspenders in support of the basic conclusion that the military need not worry itself about all of these (and other) criminal laws in interrogation of al Qaeda suspects.

Here's the remarkable thing: Page 11 of the Opinion states that "[t]he Criminal Division concurs in our conclusion that these canons of construction preclude the application of the assault, maiming, interstate stalking, and torture statutes to the military during the conduct of a war."

In other words, John Yoo checked with the Criminal Division as to whether the military could torture and maim detainees in a war, and that Division, which ordinarily strongly resists narrowing constructions of criminal statutes, agreed that the torture and maiming (and other) statutes were inapplicable.

The head of the Criminal Division at the time was Michael Chertoff (now Secretary of Homeland Security). Nine days before the memo was issued, President Bush nominated Chertoff, like Bybee, to be a federal judge on a U.S. Court of Appeals.

I'm just a curious non-lawyer: Is it possible any of this could lead to regular criminal charges or some sort of war crimes charges in the future? And if that's possible, what would the mechanism for it be?

This is one of the reasons why I have listed Chertoff as a "person of interest" in my list of persons to be investigated in my article Refluat Stercus. Please also look at Jordan Paust's Beyond the Law at page 151 where he discusses this memo.

On the prosecution point, yes I firmly believe people at this level can be prosecuted under the statutes that Yoo dismisses and other crimes that he does not mention. It is primarily a question of political will of a naming of a prosecutor, a prosecutor using the evidence gathered and bringing it to a grand jury, and a grand jury issuing an indictment. Yoo's and others if indicted would certainly seek to raise the defenses in his memo, but the point is that a jury will have to examine those defenses. What may fly as a defense in an echo chamber I am not sure will fly with a jury. This is especially true given the convictions of various low level military persons under the Uniform Code of Military Justice for things that they did that were the bidding of people relying on Yoo's advice.

As a colleague suggested to me, the lawyers for the various persons convicted at Abu Ghraib should seek habeas corpus to be released based on this memo. Graner was telling the truth, it is everyone else in the process who was lying. He was acting pursuant to superior orders. He might have a case that he could not understand that what was being ordered was an illegal order that is not to be obeyed. In any event, the person who gave the illegal order might also be prosecuted.

Yes, all this could happen and I hope it does at some point for persons. However, whether it will or not is not a legal question, it is a question of the will of persons to bring these cases forward.

Mostly we are being encouraged to acquiesce. Even Marty has frequently spoken against the possibility of criminal prosecution notwithstanding the mounting evidence of crimes at this level in the DOJ. Just because someone is a lawyer in the DOJ does not mean that they can not go to jail for torture.

With regard to Chertoff's involvement, as I commented over at Emptywheel's place tonight (http://emptywheel.firedoglake.com/2008/04/02/chertoff-keeps-waiving-laws/#Respond):

"As I mentioned in a comment (http://emptywheel.firedoglake.com/2008/01/03/harmans-letter/#Respond) here back in January, Chertoff’s involvement (via January 29, 2005 NYT article at http://www.nytimes.com/2005/01/29/politics/29home.html?pagewanted=2&_r=7&oref=login) was real, and perhaps even crucial:

...Michael Chertoff, who has been picked by President Bush to be the homeland security secretary, advised the Central Intelligence Agency on the legality of coercive interrogation methods on terror suspects under the federal anti-torture statute, current and former administration officials said this week.

~snip~

...Mr. Chertoff’s division was asked on several occasions by the intelligence agency whether its officers risked prosecution by using particular techniques. The officials said the C.I.A. wanted as much legal protection as it could obtain while the Justice Department sought to avoid giving unconditional approval.

One technique that C.I.A. officers could use under certain circumstances without fear of prosecution was strapping a subject down and making him experience a feeling of drowning...

And more from that 2005 NYT article:

...The officials said that when the agency asked about specific practices, Mr. Bybee responded with a second memorandum, which is still classified. They said it said many coercive practices were permissible if they met the narrow definition in the first memorandum.

The officials said Mr. Chertoff was consulted on the second memorandum, but Ms. Healy of the White House said he had no role in it..."

I must disclose that I am a college dropout and, thus, probably shouldn’t even be addressing the subject. My qualifications on the subject extend no further than my frequent reference, over the years, to the copy of the Constitution I bought at the John Birch Society booth at the county fair twenty years ago.

I have perfunctorily read the 81 page Yoo memo and its discussion, and dismissal a matters of of concern, the Fifth and Eight Amendments to the Constitution and whole bunch of statutory law. It does not address the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” ratified by the USA on October 21, 1994, nor other international treaties and/or conventions addressing torture and the treatment of prisoners of war.

The “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” provides, in part:

Article I

1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

A convention, so far as I have been able to determine, is included within the definition of a treaty.

So here’s what I don’t understand.

Article VI of the US Constitution provides that “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

The USA is signatory to the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”.

So why wouldn’t the torturers and those who authorize torture be subject to prosecution in the USA for their acts?

And it demonstrates exactly why it is so important to abide by such procedural norms -- so that an unconfirmed, rogue deputy in OLC can't just go around offering the most important and ground-shifting legal advice in the Executive branch without that advice having been thoroughly scrubbed and critiqued by others who are more accountable and more seasoned.

That's the point that Paul O'Neill, Larry Wilkerson, Richard Armitage and James Risen have made: The Cheney cabal deliberately ignored all the normal vetting processes.

The Cheney cabal deliberately ignored all the normal vetting processes.

Can we say 'deliberately circumvented'? I

The Fourth Amendment finding is curious, though I'm suspicious about its causal relationship to warrantless wiretapping: 'The Program' was up and running in advance of this memo, and my presumption has long been that the White House regards FISA as unconstitutional, and believes it has the right to disregard it absent an explicit SCOTUS affirmation of its constitutionality.

That said, it also the tendency of this administration to offer blanket post hoc legal justifications for its actions.

I think Bush's DoJ lawyers) always considered Fourth Amendment's requirements entirely optional. I clearly recall Gonzo mentioning this, kind of offhandedly, at one of his Congressional hearings and nobody really objected.Their rationale is - look those requirements were never meant to be absolute see for example searches incident to arrests. Basically they think it's up to them to decide what requires a warrant or not. Curious it is but certainly not unexpected.

I am a lawyer, but previous to all this, was unfamiliar with the existence or function of OLC.

Perhaps I'm missing something, but I don't really see anything institutionally extraordinary here. People in the office of the AAG-OLC find legal justification for what people in the President/C-i-C's office want to do/believe they have the right and power to do. Isn't that the very function of the AAG-OLC, the way the system is supposed to work?

The problem here is with what Addington/Cheney/Bush wanted to do, and not that a compliant in-house lawyer found that--SURPRISE!!--what they wanted to do was legal.